TO THE APPARENTLY bottomless reservoir of activities that qualify as "speech" under the First Amendment, you can now add another: topless dancing. Yes, that's right. Freedom of speech has long since been considered by judges to include such things as picketing, demonstrating and contributing money to political campaigns. But it remained for the New York Court of Appeals to give it this new dimension. The judges struck down a state law barring topless dancing in bars.
Four of them said that bare-breasted dancing by women in bars is a "type of expression" entitled to "at least minimal protection" under the First Amendment. Absurd? Well, kind of. But after thinking it over for a while -- always a dangerous practice -- we have concluded, in keeping with out notoriously and shamelessly absolutist view of the First Amendment, that the judges are right. Topless dancing may well be a form of expression, never mind that the thought conveyed appears nowhere in Bedes Laws of Ecclesiastical Polity. It is uniquely a case where the medium is the message.
Even the three dissenting judges seemed to agree with that. But they said the message being expressed in topless dancing "has so little communicative content" that it is entitled to "only a minimum of First Amendment protection." And that -- the argument over the content of the message -- gets you to the real First Amendment problem: is, or isn't, this communication obscene? The judges, confronted with the facts that the New York legislature decided to ban topless dancing only in bars that sell alcohol and not in those that sell non-alcoholic drinks or in theaters, decided it is "not inherently obscene." There was nothing before the court, one of them wrote, to support the conclusion that "it is dangerous to mix alcohol and topless dancing." Most dangerous, we suppose he meant, than mixing Ovaltine and topless dancing.
Makes perfect sense to us. But we will admit that, as First Amendment freaks, even we are a little nervous about what comes next.